Disability discrimination

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Employment law- Disability discrimination

What is disability discriminationWhat?

Disability discrimination is where you are treated unequally because of your disability, your perceived disability or the disability is with someone with whom you associate (like a close member of your family). The Equality Act 2010 makes it clear that disability is a ‘protected characteristic‘ and, accordingly, discrimination by reason of a disabilty is unlawful.

Who is protected?

All employees, job applicants, trainees, contract workers, office holders (including company directors and managers), those who are on secondment and the self-employed. In fact you have protection in all areas of areas of employment including recruitment, selection and promotion, the provision of training, the provision of benefits, retirement and occupational pensions.

Your disability would need to meet the definition as set out in the Equality Act.

How is ‘disability’ defined?

You have a disability if there is a physical or mental impairment that has a substantial and adverse long- term effect on your day-to-day activities.

• The ‘impairment’ may be physical or mental, or both.
• The meaning of ‘substantial’ is more than minor or trivial, but it may fluctuate or change, and may not be present all of the time.
• ‘Long term’ means the effect of the impairment has last or is likely to last for at least 12 months.
• ‘Day-to-day activities’ include common things for most people like using a computer, writing, following a timetable, sitting down, standing up, driving and lifting.

If you have cancer, multiple sclerosis, severe disfigurement, HIV, blindness, and visual impairment, you are automatically protected by the Act, as soon as diagnosis is given-without having to show that the condition has a substantial and long-term effect on your ability to carry out normal day-to-day activities.

Some conditions are specifically excluded from being covered by the definition of disability, such as addiction to alcohol, nicotine and any other substance (unless the addiction is the result of medically- prescribed drugs or treatment).

How easy it is to prove discrimination?

The tribunals are well aware that direct evidence of discrimination is rarely forthcoming and it is now readily accepted that discrimination need not be conscious. Some people have an inbuilt and un-recognised prejudice of which they are unaware.

Furthermore, a discriminatory reason for your employer’s conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of ‘significant influence’.

However, the Tribunal in most cases will still have to discover what was in the mind of the alleged discriminator, and the onus of proof is on your employer to show that there was no discrimination. In every case it is crucial to enquire why an employee has received less favourable treatment, and whether it was on the grounds of race or some other reason. This may be, for example, because you were not so well qualified for the role. Save in the obvious cases, asking the crucial question of your employer will call for some consideration of the mental process of the alleged discriminator (e.g. your line manager), together with the treatment you received as a consequence.

Accordingly, as direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming, the grounds of the decision or act by your employer would have to be deduced, or inferred, from the surrounding circumstances.

Can having Covid amount to a disability under the Equality Act?

Yes, tribunals are now starting to rule that Covid can be a disability if it meets the tests above.

How can disability discrimination occur at work?

Disability discrimination can occur in the following ways, and which are explored in more detail below:

• Direct Discrimination
• Indirect Discrimination
• Discrimination arising from a disability
• Failure to make reasonable adjustments
• Harassment
• Victimisation

Direct discrimination

This is where you have been, or would be, treated less favourably because of your disability than someone without a disability would be treated in the same circumstances (this person is known as a “comparator”).

A comparator can be a real or hypothetical person, but a tribunal must compare like with like (except, of course, for the existence of the disability). There must therefore be no material difference between your circumstances and the comparator’s. For example, if you claim to have been rejected for promotion because of a certain disability, but your employer argues that the decision was based entirely on experience and qualifications, the comparator must be someone of similar experience and qualifications as you, but who did not have the same disability. The comparator does not have to be an exact clone- differences that are not “material” can be ignored.

Direct discrimination can take place at any stage of employment and can occur at an interview, in the terms and conditions of your employment (or indeed whether you are offered employment at all), in promotion and transfer opportunities, when being made redundant or dismissed. In almost all circumstances, discrimination cannot be justified, save for very limited situations which are known as “occupational requirements”- see below under the heading “What defences are open to an employer?”

It is also possible to bring a direct discrimination claims based on “association or perception” (where it is believed by your employer that you have a disability, but in fact you don’t). An example of discrimination by association might be where an employee who is caring for a disabled child or parent is not given the same opportunities as colleagues as a result of this association. Discrimination by perception means that where an employee does not have a disability under the Act, an employer’s belief that the employee has a qualifying disability and his consequential discrimination towards the employee will enable the employee to make a claim.

Indirect discrimination

This is where an employer operates a policy, provision or rule which, on the face of it, has nothing to do with disability but its effect is to disadvantage those who are disabled. For example, an employer may have a rule that all employees in a certain department must report for regular training in another part of the complex within a short time window during the day. Such a rule would adversely impact on someone who has a disability based on mobility.

Indirect discrimination can be objectively justified by an employer but the onus is on your employer to prove that the discrimination is a “proportionate means of achieving a legitimate aim”, which is not always going to be easy to prove. An example of where indirect discrimination can be justified in this way is where a prospective employer has a policy that workers need to be in good health for heavy manual work and rejects an applicant with a severe back problem.

Discrimination “arising from” a disability

Discrimination can also arise if an employer treats a disabled person unfavourably because of something “connected” with their disability. For example, where an employee has a tendency to make spelling mistakes as a result of his or her dyslexia- this is something “arising from a disability”- and not the actual disability itself. Other examples are being absent from work because of an illness, problems with movement, or difficulties with reading, talking, listening or understanding.

Some examples of actual “discrimination arising from  a disability” include:

• you’re not receiving a bonus, because of your sickness absence relating to your disability;
• a lack of promotion because you have mobility problems;
• being selected for redundancy because you make spelling mistakes arising from dyslexia.

To amount to unlawful discrimination, an employer must know, or reasonably expect to know, that the person in question has a disability.

Failure to make reasonable adjustments

If you have a disability, your employer has a duty to ‘make reasonable adjustments’ to help alleviate any disadvantages that the disability causes you (compared with non-disabled employees). A failure to make appropriate reasonable adjustments is disability discrimination.

Your employer may have a duty to make reasonable adjustments if:

1.      Physical features of your place of work mean that you are at a disadvantage because of your disability. Examples of this include a lack of wheelchair ramps for employees in wheelchairs or having clear glass doors if an employee is visually impaired.

2.      Not being provided with an ‘auxiliary aid’ will put you at a substantial disadvantage because of your disability. This usually means a specialist or adapted piece of equipment, such as adapted keyboards, large print or Braille materials or assistive listening devices.

3.      A ‘provision, criterion or practice’ of your employer puts you at a substantial disadvantage because of your disability.

What does ‘provision, criterion or practice’ (“PCP”) mean?

A PCP has a broad definition. It refers to all rules and conditions that form part of your employment. These are not simply the formal policies contained within your contract or handbook, but all other arrangements and practices that exist within the workplace.

Your employer must have a PCP that puts you at a substantial disadvantage for the duty to make reasonable adjustments to arise.

Examples of PCPs that might put an employee with a disability at ‘substantial disadvantage’ compared to non-disabled employees are:

• a requirement to travel long distances if you have mobility issues.
• a ‘hot-desking’ type arrangement or requirement to attend face to face meetings if you suffer from serious social anxiety.
• a requirement to work at certain times of the day or night if you have a condition that causes serious fatigue at those times.

What adjustments does your employer have to make?

If a disabled employee is put at a substantial disadvantage in terms of physical features of the workplace, auxiliary aids or PCPs, the employer must make reasonable adjustments to help remove the disadvantage. Any adjustment must be genuinely likely to improve the disadvantage.

Whether or not it is reasonable for your employer to make a particular adjustment will depend on your specific circumstances. Generally, the cost of the adjustment required will be weighed up against your employer’s resources – the more resources your employer has, the harder it would be to argue that the adjustment required is ‘too costly’ and therefore not ‘reasonable’.

If you do not disclose your disability to your employer, can it be argued that there is contributory fault on your part?

This would be a very unattractive argument to run by your employer. In most cases, tribunals are aware that invisible disabilities are not likely to be disclosed by people, because they do not want to miss out on jobs. In any event there is no obligation on candidates to make such disclosure, unless your disability poses a risk to yourself or to others.

Bear in mind however, that your employer cannot usually be held to account for a failure to make reasonable adjustments if theyt have no way of knowing about your disability.

Harassment

Harassment occurs when, because of your disability, your employer engages in unwanted conduct which has the purpose or effect of (a) violating your dignity or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for you.

Examples of harassment might include negative or offensive remarks or jokes about an individual’s disability, unwelcome discussion of the impact of disability, refusal to work with and exclusion of people with disabilities from social events or meetings. Conduct shall be regarded as having the effect of violating someone’s dignity etc only if, in all the circumstances, including the victim’s perception, it could reasonably be seen as having that effect. The concept of the victim’s ‘reasonableness’ can sometimes make it difficult to win such cases.

Disability discrimination doesn’t necessarily have to be directed at an individual or individuals, it can be the general culture of the firm. Therefore, it is possible to claim even where the discrimination is not directed at the claimant personally. So, an able-bodied person can make a claim if he has witnessed and been offended by the discrimination of a disabled colleague.

The Act has extended the law on harassment to include third parties. This means that, in some circumstances, employers will be liable for harassment of employees by clients, customers, suppliers or patients. If your employer knew, or ought to have known that you have been harassed in the course of your employment on at least two previous occasions by a third party (not necessarily the same third party or the same form of harassment on each occasion) and has failed to make reasonable steps to prevent it happening again, he may be liable under the Act.

Victimisation

This is where an individual is treated less favourably as a result of having made, tried to make, helped someone else to make, or assumed to have made, a complaint or grievance of disability discrimination under the Act. There is no longer a need to compare treatment to an employee who has not done one of the above things.

Who is liable under the Act?

Liability for discrimination usually lies with the employer and/or any other person who is found to have discriminated in the course of their employment (vicarious liability). As mentioned above, the employer will also be liable for the acts of third parties in certain circumstances.

Where the acts complained of are done by another employee, it is usually best to bring the Employment Tribunal application against both the employee and the employer.

Employers have a defence to a complaint of discrimination based on vicarious liability and third party harassment if they can prove that they took all reasonably practicable steps to prevent the discrimination.

Should I disclose my disability to my employer?

Your employer cannot be liable for direct disability discrimination, discrimination arising from disability or failure to make reasonable adjustments unless it knew, or should have known, about your disability. Whether or not you disclose your condition in its current form is entirely at your discretion, but if you feel that it is likely to have a negative impact on your work, it may be advisable to make a disclosure. Your employer would otherwise not have the opportunity to make any adjustments and there is a possibility that unfair assumptions could be made concerning, for example, your performance.

What defences are open to an employer against allegations of disability discrimination?

For your employer to be answerable for alleged disability discrimination, they must have known, or be in a position where they should have known, that you are disabled

Employers should, for example, be mindful of an employee who is on sick leave or who is having difficulty participating at work may be disabled, together with the duty not to discriminate and to consider what reasonable adjustments may apply. If challenged, employers will be required to show that they considered all the information before them and made reasonable enquiries about whether the employee was disabled. What is ‘reasonable’ will depend on the circumstances. This is an objective assessment.

There are also some exceptions to the general rule that an employer cannot discriminate against an employee on the basis of their disability.

These are:

• an ‘occupational requirement’, which would allow employers to discriminate based on their belief that a disabled person may be unsuitable or more suitable for a particular role. This relates to everything from recruitment and promotion to dismissal. For example, a job applicant who uses a wheelchair may not be able to work on certain types of building sites, and a person with visual impairment would not be suitable for a role as an airline pilot. While this exception exists, an employer would still need to demonstrate that the direct discrimination was a proportionate means of achieving a legitimate aim (i.e. that there was no less discriminatory route available and it related to a real business need). The onus would be on an employer prove this, which is often difficult.

• the defence of “objective justification” in relation to indirect disability discrimination and/or discrimination arising from a disability.  Again, an employer would need to demonstrate that the less favourable treatment was a proportionate means of achieving a legitimate aim.

When does depression amount to a disability under the Equality Act?

The question of whether depression can amount to a disability is likely to focus on the effect the impairment has on your day-to-day activities (on a long term basis) in general. If the tribunal finds a long-term substantial adverse effect, it will, in most cases, follow “as a matter of common sense inference” that the you are suffering from an impairment which has produced that effect.

However, although there is no longer a requirement that the mental impairment be ‘clinically well-recognised’ in order to qualify under the Act, it is still likely that the Tribunal will want a qualified and informed medical opinion (from, for example, a consultant). Additionally, even where an employee satisfies the first element of the disability definition test by establishing an impairment, they must then be able to show that there are substantial adverse effects of their impairment and that the effects are long-term (must last, or be likely to last, for one year).

Questions at interview

The Act has created a new provision which makes it unlawful for a prospective employer to ask a candidate about his health or sickness record before offering work. There are, of course, limited exceptions to this rule. Therefore, an employer may ask health-related questions where this is necessary to:

• determine if and what reasonable adjustments need to be made for the applicant during the selection process. For example, it may be necessary to enable a deaf applicant to bring an interpreter into the interview room;
• decide if an applicant can carry out an essential part of the job. For example, manual labour;
• monitor diversity of people making applications for jobs;
• take positive action to assist disabled people;
• ensure that an applicant for a job that requires the employee to have a disability, does, in fact, have a disability.

Proof of discrimination

As mentioned above, it is for the person making the claim to establish that discrimination has occurred. The employee has to prove discrimination by the employer ‘on the balance of probabilities’.

This means that, although a tribunal might have doubts as to whether the employer discriminated, as long as the tribunal more than half believes that discrimination has incurred, it must decide in favour of the employee.

Once an employee has established facts from which it may be presumed that discrimination has occurred, it is up to the employer to prove that no such discrimination has in fact occurred.

Whether or not discrimination can be proved will often depend on what inferences a tribunal can draw from the primary facts. If they point to the possibility of disability discrimination, the tribunal may look to the employer for an explanation that proves there was no discrimination. If no such explanation is put forward or if the tribunal finds the supposed explanation inadequate or unsatisfactory it is open to the tribunal to infer that the discrimination was on the grounds of disability.

Raising a grievance

If you are still in employment and you cannot resolve the matter informally with your line manager, then it is best to first lodge an internal grievance. Your employer will then be obliged to convene a meeting without unreasonable delay to discuss your grievance. You may, however, still be able to bring a claim in the Employment Tribunal whilst you are still employed.

If you have already been dismissed and you think you have been discriminated against, you can lodge a claim for unfair dismissal and/or discrimination in the Employment Tribunal.

Remedies

An employment tribunal can award one or more of three remedies if it finds that an individual has been a victim of disability discrimination.

1.  A declaration, which states what the rights of the parties are;

2.  Compensation (further details below).

3.  A recommendation that the employer should take certain steps to remove or reduce the effect of the discrimination.

What compensation can you claim for disability discrimination?

Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for disability discrimination. Compensation normally includes:

–loss of earnings, which can include past or future losses, unpaid holiday, bonuses, stock options or notice pay;

–an award of damages for ‘injury to feelings‘ (see the injury to feelings compensation guidelines below). This is to compensate you for the upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.

– a personal injury, whether this is due to depression or physical injury (see below);

–aggravated damages. These are awarded in the most serious cases where the behaviour of your employer has aggravated your injury;

–punitive damages. This award is very rare and only in limited circumstances where the compensation itself is an insufficient punishment and your employer’s conduct is very oppressive;

–interest, which can be awarded from the date of the discrimination until the date the Tribunal calculates compensation.

 

INJURY TO FEELINGS COMPENSATION GUIDELINES

The Court of Appeal have set out 3 bands of compensation guidelines for injury to feelings, depending on the seriousness of the case. These are commonly known as the ” Vento” guidelines, and from 6th April 2024 they are:

TOP BAND FOR THE MOST SERIOUS CASES: £35,200- £58,700 (although it can exceed this in exceptional cases);

MIDDLE BAND:  £11,700 – £35,200

LOWER BAND FOR LESS SERIOUS CASES (e.g. a one-off or isolated incident of discrimination):  £1,200 – £11,700

Can I also claim personal injury in the employment tribunal due to the discrimination I have received?

As mentioned above, although you cannot bring a standalone personal injury claim in the Employment Tribunal, you can claim compensation for psychiatric or physical injuries which you may have suffered due to the discrimination you have received from your employer.

In most cases, any claim for personal injury within the context of employment law cases relate to psychological injury as opposed to physical injury. This incudes stress and anxiety and injury to feelings, and this has to be attributable to your employers’ conduct rather than for personal reasons. Often, you would need medical evidence to identify whether your injury is indeed caused by reasons of discrimination.

Other than compensation for injury to feelings, as mentioned above, other compensation in the employment tribunal for personal injury is calculated on the following basis:

• “General Damages” (e.g. pain & suffering, and loss of amenity, such as taking part in hobbies or other lifestyle;
• “Special Damages” (this relates to financial compensation, including loss of earnings and other quantifiable sums).

What am I unable to include as part of my discrimination claim?

You will be unable to claim for the following:

• loss of reputation;
• injury to feelings for each alleged act of discrimination (unless you have discriminated for more than one protected characteristic (such as race, sex, disability etc.);
• an apology;
• costs (usually these are not awarded should you win or lose a tribunal case).

Time limits

The Act imposes strict time limits throughout the procedure for bringing a case for disability discrimination. Good cases can be lost before they start through hesitation or delay.

If you suspect that you have been discriminated against by your employer, you should take advice as soon as possible.

The time limit for making a claim for disability discrimination to the employment tribunal is three months less one day from the last act of discrimination.  It is now mandatory to go through ACAS’s early conciliation scheme before you can submit a claim to the tribunal.

A discriminatory act may extend over a period of time so that it may be a continuing act if it takes the form of some policy, rule or practice by your employer. In these circumstances the three month period runs from the end of the continuing act. This includes omissions on the part of the employer such as making a decision not to provide reasonable adjustments. Where the complaint relates to a failure to do something, it is treated under the Equality Act as having occurred at the time your employer decided not to do it.

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Tribunals do have discretion to allow late claims to proceed, but there must be a good reason why a claim was not made in time.

You should obtain professional advice as soon as possible if you think you have a claim.

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